DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR BENJAMIN CROSSING

Transcription

1 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR BENJAMIN CROSSING

2 TABLE OF CONTENTS Recitals:... 5 Terms:... 5 ARTICLE I - DEFINITIONS... 6 Section 1.1 ''Assessment"... 6 Section 1.2 "Association"... 6 Section 1.3 "Board"... 6 Section 1.4 "Committee"... 6 Section 1.5 "Common Area(s)"... 6 Section 1.6 "Common Expenses"... 6 Section 1.7 "Development Period"... 6 Section 1.8 "Dwelling Unit"... 6 Section 1.9 ''Easement Area"... 6 Section 1.10 "Lake" or "Lakes"... 6 Section 1.11 "Limited Common Area"... 6 Section 1.12 "Lot" or "Lots"... 6 Section 1.13 "Member"... 6 Section 1.14 "Owner"... 6 Section 1.15 "Real Estate"... 7 Section 1.16 "Supplemental Declaration"... 7 ARTICLE II - DEVELOPMENT OF THE REAL ESTATE... 8 Section 2.1 Development of the Real Estate Section 2.2 Public Streets Section 2.3 Development of Additional Property Section 2.4 Annexation of Additional Real Estate by Members Section 2.5 Withdrawal of Property... 8 ARTICLE III - PROPERTY RIGHTS AND EASEMENTS... 8 Section 3.1 General Section 3.2 Owner's Easement of Enjoyment Section 3.3 Easements for Developer Section 3.4 Drainage, Utility and Sewer Easements ("DU&SE") 1 st Amendment Section 3.5 Drainage Easements Section 3.6 Landscape Easements ("LE") Section 3.7 Lake Maintenance Access Easement and Emergency Access Easement Section 3.8 Medians and Entry Features Section 3.9 Sales and Construction Offices Section 3.10 Maintenance Easement Section 3.11 Patio Homes Section 3.12 Tree Preservation Areas ("TPA'')... 12

3 Section 3.13 Private Lane Easements 1 st Amendment Section 3.14 Perpetual Non-Buildable Easement 1 st Amendment ARTICLE IV - ORGANIZATION AND DUTIES OF ASSOCIATION Section 4.1 Organization of Association Section 4.2 Voting Rights Section 4.3 General Duties of the Association (a) Maintenance by Association (b) Maintenance by Owners (c) Association's Remedies & if Owner Fails to Maintain Lot Section 4.4 Insurance Section 4.5 Owners' Insurance Requirements Section 4.6 Condemnation or Destruction Section 4. 7 Transfer of Control of Association Developer Section 4.8 Interim Advisory Committee Section 4.9 Mortgagees' Rights Section 4.10 Compliance with Drainage Plan 2 nd Amendment ARTICLE V - ASSESSMENTS Section 5.1 Purpose of Assessments Section 5.2 Liability for Assessment Section 5.3 Pro-rata Share Section 5.4 Basis of Annual Assessments Section 5.5 Basis of Special Assessments Section 5.6 Fiscal Year; Date of Commencement of Assessments; Due Dates Section 5. 7 Duties of the Association Regarding Assessments Section 5.8 Non-payment of Assessments; Remedies of Association Section 5.9 Adjustments ARTICLE VI - ARCHITECTURAL STANDARDS AND REQUIREMENTS Section 6.1 Purpose Section 6.2 Development Control Committee Section 6.3 No Waiver of Future Approvals Section 6.4 Architectural Approval [See RR&P Article II for additional information] Section 6.5 Non Vegetative Landscaping Approval Section 6.6 Approval Not a Guarantee Section 6. 7 Building Restrictions ARTICLE VII - USE RESTRICTIONS Section 7.1 Use of Lots Section 7.2 Awnings and Window Screens Section 7.3 Signs [See RR&P Article III for additional information] Section 7.4 Parking and Prohibited Vehicles 1 st Amendment [See RR&P Article IV for additional information] Section 7.5 Animals and Pets [See RR&P Article V for additional information] Section 7.6 Quiet Enjoyment

4 Section 7.7 Unsightly or Unkempt Conditions; Lawn Care; Dumping [See RR&P Article VI for additional information] Section 7.8 Antennas, Aerials and Satellite Dishes Section 7.9 Garbage Cans, Tanks, Etc. [See RR&P Article VII for additional information] Section 7.10 Pools [See RR&P Article VIII for additional restrictions] Section 7.11 Storage Sheds and Temporary Structures [See RR&P Article IX for additional information] Section 7.12 Drainage, Water Wells and Septic Systems Section 7.13 Traffic Regulation and Sight Distance at Intersections Section 7.14 Utility Lines Section 7.15 Air Conditioning Units [See RR&P Article X for additional information] Section 7.16 Mailboxes [See RR&P Article XI for additional information] Section 7.17 Solar Panels Section 7.18 Homeowner Landscape Requirement Section 7.19 Seeding of Rear Yards Section 7.20 Exterior Flags and Sculpture [See RR&P Article XII for additional information] Section 7.21 Driveways and Sidewalks [See RR&P Article XII.1 for additional information] Section 7.22 Wetlands, Lakes and Water Bodies Section 7.23 Fences 1 st Amendment [See RR&P Article XIII for additional information] Section 7.24 Business Uses Section 7.25 Basketball Goals [See RR&P Article XIV for additional information] Section 7.26 Playground Equipment [See RR&P Article XV for additional information] Section 7.27 On-Site Fuel Storage Section 7.28 Contiguous Lots Section 7.29 Control of Lakes and Common Areas Section 7.30 Laws and Ordinances Section 7.31 Sales and Construction Section 7.32 Occupants Bound ARTICLE VIII - RULEMAKING AND REMEDIES FOR ENFORCEMENT Section 8.1 Rules and Regulations [See RR&P Article XVI for additional information] Section 8.2 Authority and Enforcement ARTICLE IX - GENERAL PROVISIONS Section 9.1 Term Section 9.2 Amendment Section 9.3 Indemnification Section 9.4 Interpretation Section 9.5 Right of Entry Section 9.6 Perpetuities Section 9. 7 Litigation Section 9.8 Notice of Sale or Transfer of Title Section 9.9 Gender and Grammar Section 9.10 Severability Section 9.11 Rights of third Parties

5 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR BENJAMIN CROSSING THIS DECLARATION,, 20_, is by Benjamin Crossing LLC, an Indiana limited partnership ("Developer"). Recitals: A. Developer is the purchaser and owner of all of the lands contained in the area shown on Exhibit "A", attached hereto and made a part hereof (the "Original Tract). B. Developer has the right to acquire the parcel of real estate in Tippecanoe County, Indiana, as more particularly described in Exhibit ''B" attached hereto and made a part hereof (the "Additional Tract"). C. Developer intends to subdivide the Original Tract for development of Benjamin Crossing, a single family housing development in Tippecanoe County, Indiana, and may in the future desire to subdivide the Additional Tract as a part of such development, as will be more particularly described on the plats of the various sections thereof recorded and to be recorded in the Office of the Recorder of Tippecanoe County, Indiana (the "Plats"). D. Developer desires to subject and impose upon all real estate within the platted areas of the Original Tract, together with all or such portions of the Additional Tract as may hereafter be made subject to the terms of this Declaration as provided herein, mutual and beneficial restrictions, covenants, conditions and charges contained herein contained and as set forth in the Plats (such restrictions, covenants, conditions and charges herein referred to alternatively as the "Declaration" or "Restrictions") under a general plan or scheme of improvement for the benefit and complement of the lots and lands in the Original Tract together with all or such portions of the Additional Tract as may hereafter be made subject to this Declaration, and future owners thereof. Terms: NOW, THEREFORE, Developer hereby declares that all of the platted lots and lands located within the Real Estate, as defined below, are held and shall be held, conveyed, hypothecated or encumbered, leased, rented, used, occupied and improved, subject to the Restrictions, all of which are declared and agreed to be in furtherance of a plan for the improvement and sale of said lots and lands within the Real Estate, and are established and agreed upon for the purpose of enhancing and protecting the value, desirability and attractiveness of the Real Estate as a whole and of each of said lots situated therein. All of the Restrictions shall run with the land and shall be binding upon Developer and upon the parties having or acquiring any right, title or interest, legal or equitable, in and to the real property or any part or parts thereof subject to the Restrictions, and shall inure to the benefit of Developer's successors in title to any real estate in the Real Estate.

6 ARTICLE I - DEFINITIONS The following are the definitions of the terms used in this Declaration: Section 1.1 ''Assessment" shall mean the share of the Common Expenses imposed on each Lot or other special assessments, as determined and levied pursuant to the provisions of Article V hereof. Section 1.2 "Association" shall mean Benjamin Crossing Homeowners' Association, Inc., or an entity of similar name, its successors and assigns, which shall be created as an. Indiana nonprofit corporation formed or to be formed under the Indiana Nonprofit Corporation Act of 1991, as amended. Section 1.3 "Board" shall mean the Board of Directors of the Association. Section 1.4 "Committee" shall mean the Development Control Committee, which shall be appointed by the Board - and have such duties as provided in Article VI, below. Plats. Section 1.5 "Common Area(s)" shall mean those areas and all improvements located thereon which are identified on the Section 1.6 "Common Expenses" shall mean the actual and. estimated cost to the Association of the costs for maintenance, management, operation, repair, improvement and replacement of the Common Areas, and any other cost or expense incurred by the Association for the benefit of the Common Areas or for the benefit of the Association. Section 1.7 "Development Period" shall mean the period of time during which Developer owns at least one (1) lot. Section 1.8 "Dwelling Unit" shall mean and refer to any structure (or portion thereof) designed or intended for use and occupancy as a residence by one (1) family on a Lot located within the Real Estate, irrespective of whether such dwelling is detached or attached to another Dwelling Unit. Section 1.9 ''Easement Area" shall mean any portion of the Real Estate which is subject to an easement as more particularly described in Article III, below. Section 1.10 "Lake" or "Lakes" shall mean and refer to the water detention pond(s) or lake(s), whether or not such are also a Common Area, together with the shoreline area thereof, as shown on the Plats. Section 1.11 "Limited Common Area" may appear upon the Plats designated by block letter and further identified as a "cui-de-loop" which is created for the exclusive use and enjoyment of those particular lots having public street access therefrom. Each such owner shall have an easement for ingress and egress in common with the other adjacent owners to the public street across such area. Such cui-de-loop may further have a landscaped island as may be shown on the Plats therein adjacent to the public right-of-way and such Limited Common Area shall be owned and maintained by equal undivided interests as tenants in common of the lots abutting thereon and using the cui-de-loop as a means of ingress and egress to the public street. Such maintenance and repair shall be undertaken by a determination in writing of a majority of the lot owners having an undivided interest in the.limited Common Area, and upon the failure of any such lot owner to pay his equal contributive share for such maintenance or repair, the remaining lot owners or any one of them may advance the defaulting lot owner's contributive share upon thirty (30) days' written notice and such advancement shall constitute a lien upon the lot of the defaulting lot owner enforceable in the same manner and under the same terms as made and provided under the provisions of the Mechanics Lien Laws of the State of Indiana, Chapter 116 of the Acts of the 1909 Indiana General Assembly as amended to date, I.C et seq. Any such lien shall be subordinate to the lien of any first mortgage and any first mortgagee taking title to a lot by foreclosure or deed in lieu thereof shall take title free and clear of any su.ch assessments for work 'performed prior to such mortgagee s taking title. Section 1.12 "Lot" or "Lots" shall mean any parcel(s) of the Real Estate (excluding the Common Areas) which are designated and intended for use as a building site, or developed and improved for use as a single family residence identified by number on the Plats. No Lot shall be further subdivided for development purposes, except as may be reasonably necessary to adjust for minor side or rear yard encroachments or inconsistencies. Section 1.13 "Member" shall mean any person or entity holding membership in the Association. Section 1.14 "Owner" shall mean the record owner, whether by one or more persons, of the fee simple title to any Lot, but excluding those persons having such interest merely as security for the performance of an obligation.

7 Section 1.15 "Real Estate" shall mean the Original Tract, and all or such portion of the Additional Tract as has, from time to time, been subjected to this Declaration. Section 1.16 "Supplemental Declaration" shall mean an amendment or supplement to this Declaration or a Plat executed by or consented to by Developer, or by the Association pursuant to Article II, and recorded in the public records of the county in which the Declaration was originally recorded, which subjects all or any portion of the Additional Tract to this Declaration and/or imposes, expressly or by reference, additional restrictions and obligations on the Real Estate or the land described therein. A Supplemental Declaration may also remove any portion of the Real Estate then owned by Developer from the control and provisions of this Declaration.

8 ARTICLE II - DEVELOPMENT OF THE REAL ESTATE Section 2.1 Development of the Real Estate. All Lots shall be and hereby are restricted exclusively to single-family residential use and shall be subject to the standards and restrictions set forth in this Declaration. Developer shall have the right, but not the obligation, during the Development Period, to submit additional real estate to or exclude any portion of the Real Estate from the provisions of this Declaration, and to make and maintain improvements, repairs and changes to any Common Area and all Lots owned by Developer, including without limitation: (a) installation and maintenance of improvements in and to the Common Areas; (b) changes in the location of the boundaries of any Lots owned by Developer or of the Common Areas; (c) installation and maintenance of any water, sewer, and other utility systems and facilities; (d) installation of security or refuse systems; and (e) additions or changes to the boundaries of any Common Areas or Easement Areas. Section 2.2 Public Streets. The streets and public rights-of-way shown on the Plats are, upon recording of the Plats, dedicated to the public use, to be owned and maintained by the governmental body having jurisdiction, subject to construction standards and acceptance by such governmental body. All Lots shall be accessed from the interior streets of the Development. Section 2.3 Development of Additional Property. Developer hereby reserves the right and option, to be exercised in its sole discretion and without further approval by any party, to submit at any time and from time to time during the Development Period, additional real estate to the provisions of this Declaration, including but not limited to the Additional Tract. This option may be exercised by Developer in accordance with the following rights, conditions, and limitations: (a) Additional real estate may be added to the Real Estate at different times, and there are no limitations fixing the boundaries of the portions or regulating the order, sequence, or location in which any of such portions may be added to the Real Estate. No single exercise of Developer's option to submit additional real estate to the Declaration shall preclude any further exercises of this 6ption thereafter and from time to time as to other real estate. (b) The option to add additional real estate may be exercised by Developer by the execution of a Supplemental Declaration or Plat describing such additional real estate, which shall be filed in the public records of the county in which the Declaration was originally recorded, together with a legal description of the additional real estate. The provisions of this Declaration shall then be construed as embracing the real property described in Exhibit "A" and such additional real estate so submitted to the terms hereof, together with all improvements located thereon.. Section 2.4 Annexation of Additional Real Estate by Members. After the Development Period, the Association may annex additional real property to the provisions of this Declaration and the jurisdiction of the Association. Such annexation shall require the affirmative vote of at least two-thirds (2/3) of the Members. Annexation by the Association shall be accomplished by the appropriate filing of record of a Supplemental Declaration describing the property being annexed. Any such Supplemental Declaration shall be signed by the President and the Secretary of the Association, and by the owner of the property being annexed and any such annexation shall be effective upon filing unless otherwise provided therein. The relevant provision of the By-Laws dealing with regular or special meetings, as the case maybe, shall apply to determine the time required for and the proper form of notice of any meeting called for the purpose of considering annexation of property pursuant to this Section. 2.4 and to ascertain the presence of a quorum at such meeting. Section 2.5 Withdrawal of Property. Developer hereby reserves the right and option during the Development Period, to be exercised in its sole discretion and without further approval by any party, to withdraw and remove any portion of the Real Estate then owned by Developer :from the control and provisions of this Declaration. Such removal by Developer shall be carried out generally by the execution and filing of a Supplemental Declaration or oth.er document which shall be filed in the public records of county in which the Declaration was originally recorded, together with a legal description of the Real Estate being withdrawn. ARTICLE III - PROPERTY RIGHTS AND EASEMENTS Section 3.1 General. Each Lot shall for all purposes constitute real property which shall be owned in fee simple and which, subject to the provisions of this Declaration, may be conveyed, transferred, and encumbered the same as any other real property. The Owners of any Lot subject to this Declaration, by acceptance of a deed conveying title thereto, or the execution of a contract for the purchase thereof, whether from Developer or a subsequent Owner of such Lot, shall accept such deed and execute such contract subject to each and every restriction and agreement herein contained. By acceptance of such deed or execution of such contract, the new Owner acknowledges the rights and powers of Developer with respect to this Declaration, and also for themselves, their heirs, personal representatives, successors and assigns. Each Owner shall be entitled to the exclusive ownership, and possession of his Lot subject to the provisions of this Declaration, including without limitation, the provisions of this Article III. The ownership of each Lot shall include, and there shall pass with each Lot as an appurtenance thereto, whether or not separately described, a non-exclusive right and easement of enjoyment in and to the Common Areas as established hereunder and membership in the Association. Each Owner shall automatically become a member of the Association and shall remain a Member thereof until such time as his ownership ceases for any reason, at which time his membership in the Association shall automatically pass to his successor-in-title any certificates or

9 other evidences of his membership in the Association Lots shall not be subdivided by Owners and the boundaries between Lots and between the Real Estate and other neighborhoods shall not be relocated, unless the relocation thereof is made with the approval of the Board and, during the Development Period, of Developer. Section 3.2 Owner's Easement of Enjoyment. Every Owner, his family, tenants, and guests shall have a non-exclusive right and easement of use and enjoyment in and to the Common Areas, such easement to be appurtenant to and to pass with title to each Lot, subject to the provisions of this Declaration and the rules, regulations, fees, and charges from time to time established by the Board in accordance with the By-Laws and subject to the following provisions: (a) The Right of the Association, upon the affirmative vote or written consent, or any combination thereof, of voting Members representing at least seventy-five percent (75%) of the Members entitled to vote thereon, to mortgage all or any portion of the Common Areas for the purpose of securing a loan of money to be used to manage, repair, maintain, improve, operate, or expand the Common Areas; provided, however that if ingress or egress to any residence constructed on a Lot is through such Common Area, then such encumbrance shall be subject to an easement in favor of such Lot for ingress and egress thereto. (b) The easements reserved elsewhere in this Declaration or in any Plat of all or any part of the Real Estate, and the right of the Association to grant and accept easements as provided in this Article III. The location of any improvements, trees or landscaping within an easement area is done at the Owner's risk and is subject to possible removal by the Association or the grantee of such easement. (c) The right of the Association to dedicate or transfer fee simple title to all or any portion of the Common Areas to any appropriate public agency or authority, public service district, public or private,utility, or other person, provided that any such transfer of the fee simple title must be approved (i) during the Development Period, by the Developer; and (ii) after the Development Period, upon the affirmative vote or written consent, or any combination thereof; of voting Members representing at least seventy-five percent (75%) of the Members entitled to vote thereon; provided, however that if ingress or egress to any residence constructed on a Lot is through such Common Area, then such dedication or transfer shall be subject to an easement in favor of such Lot for ingress and egress thereto. (d) The rights of the Association and Developer reserved elsewhere in this Declaration or as provided in any Plat of all or any part of the Real Estate (e) The rights of the holder of any mortgage which is prior in right or superior to the rights, interests, options, 'licenses, easements, and privileges herein reserved or established. Section 3.3 Easements for Developer. (a) During the Development Period, Developer shall have an easement for access to the Real Estate, including any Lot and all Common Areas, for the purpose of constructing structures and other improvements in and to the Lots and Common Areas, and for installing, maintaining, repairing, and replacing such other improvements to the Real Estate (including any portions of the Common Areas) as are contemplated by this Declaration or as Developer desires, in its sole discretion, including, without limitation, any improvements or changes permitted and described by Article II hereof, and for the purpose of doing all things reasonably necessary and proper in connection therewith, provided in no event shall Developer have the obligation to do any of the foregoing. In addition to the other rights and easements set forth herein and regardless of whether Developer at that time retains ownership of a Lot, Developer shall have an alienable, transferable, and perpetual right and easement to have access, ingress and egress to the Common Areas and improvement thereon for such purposes as Developer deems appropriate, provided that Developer shall not exercise such right so as to unreasonably interfere with the rights of owners of the Real Estate. (b) In addition to the easement set forth in Section 3.3 (a), Developer hereby retains, reserves and is granted an exclusive perpetual easement over, above, across, upon, along, in, through, and under the Utility Easement Areas, as such is defined in Section 3.4, below (i) for the purpose of owning, installing, maintaining, repairing, replacing, relocating, improving, expanding and otherwise servicing any utility or service including, without limitation, electricity, gas, sewer, telephone, television, and computer link by line, wire, cable, main, duct, pipe conduit, pole, microwave, satellite or any other transfer or wireless technology, and any related equipment, facilities and installations of any type bringing such utilities or services to each Lot or Common Area; (ii) to provide access to an ingress and egress to and from the Real Estate for the purposes specified in subsection (i); and

10 (iii) to make improvements to and within the Real Estate to provide for the rendering of public and quasi-public services to the Real Estate. The easements, rights and privileges reserved to Developer under this Section 3.3(b) shall be transferable by Developer to any person or entity solely at the option and benefit of the Developer, its successors and assigns, and without notice to, or the consent of the Association, the Owners, or any other person or entity. Developer may at any time and from time to time grant similar or lesser easements, rights, or privileges to any person or entity. By way of example, but not by limitation, Developer and others to whom Developer may grant such similar or lesser easements, rights or privileges, may so use any portion of the Real Estate to supply exclusive telecommunications services to each Lot. The Easements, rights and privileges reserved under this Section shall be for the exclusive benefit of Developer, its successors and assigns and may not be impaired, limited or transferred, sold or granted to any person or entity by the Association or any of the Owners. Section 3.4 Drainage, Utility and Sewer Easements ("DU&SE") 1st Amendment. (a) There is hereby reserved for the benefit of Developer, the Association, and their respective successors and assigns; the perpetual right and easement, as well as the power, to hereafter grant and accept nonexclusive easements to and from any of the following providers and their respective successors and assigns, upon, over, under, and across (i) all of the Common Areas; and (ii) those portions of all Lots designated on the Plat as "DU&SE" and as otherwise are reasonably necessary (such areas herein referred to collectively as the ''Utility Easement Areas" for installing, replacing, repairing, and maintaining, the following specified services, and no other: Name of Specific Provider: Tipmont REMC City of Lafayette City of Lafayette Vectren Verizon Communications Specific Service: Electricity Water Sewer Natural Gas Telephone Cable (First Amendment to Declaration of Covenants, Conditions and Restrictions; amended December 18, 2003 by Developer) The Developer, the Association, and their successors and assigns shall also have the perpetual right and easement, as well as the power, to hereafter grant and accept nonexclusive easements within the Utility Easement Areas to and from any public authority or agency, public service district, public or private utility or other person for the purpose of installing, replacing, repairing, maintaining, and using storm sewers, drainage systems, and retention ponds and facilities for the Real Estate or any portion thereof. Any other grant or acceptance of any easement other than those specified above for any other utility service, including but not limited to, master television antenna and/or cable systems, security and similar systems, shall be made by Developer in accordance with the rights reserved to Developer under Section 3.3(b), above. To the extent possible, all utility lines and facilities serving the Real Estate and located therein shall be located underground. By virtue of any such easements and facilities, it shall be expressly permissible for the providing utility company or other Supplier or service provider, with respect to the portions of the Development so encumbered, (i) to erect and maintain pipes, lines, manholes, pumps, and other necessary equipment and facilities, (ii) to cut and remove any fences, trees, bushes, or shrubbery, (iii) to grade, excavate, or fill, or (iv) to take any other similar action reasonably necessary to provide economical and safe installation, maintenance, repair, replacement, and use of such utilities and systems. (b) Developer herby grants to such governmental authority or agency as shall from time to time have jurisdiction over the Real Estate with respect to law enforcement and fire protection, the perpetual, non-exclusive right and easement upon, over, and across all of the Common Areas for purposes of performing such duties and activities related to law enforcement and fire protection in and upon the Real Estate as shall be required or appropriate from time to time by such governmental authorities under applicable law. (c) There shall be created sanitary sewer easements in those areas designated on the Plat, which easements shall~ in f11vor of Developer and any governmental or private entity needing such access for 1;he purpose of installation and maintenance of the pipes, lines, manholes, pumps and other equipment necessary for the sanitary sewer system.

11 Section 3.5 Drainage Easements. There is hereby reserved an easement for the benefit of Developer, the Association, and their respective successors and assigns for access to and installation, repair, or removal of a drainage system, either by surface drainage or appropriate underground installations, for the Real Estate; provided, however, that the Owner of any Lot subject to a drainage easement shall be required to maintain the portion of said drainage easement on his Lot (as shown. on any Plat) in the condition originally provided by Developer and free from obstructions so that the surface water drainage will be unimpeded. No changes shall be made to said area by the Owner without the written consent of the applicable governmental agency; provided, however, that Developer, in its sole discretion, may make any changes. No permanent structures shall be erected or maintained upon said drainage easements. Section 3.6 Landscape Easements ("LE"). Landscape Easements, as designated on a Plat of all or any part of the Real Estate, are hereby created and reserved for the use of Developer and the Association for access to and installation, maintenance, repair, and replacement of si.gns, walls, earth mounds, trees, foliage, landscaping, and other improvements. Except as installed by Developer or the Association, no improvements or permanent structures, including without limitation, fences, patios, decks, driveways, and walkways, shall be erected or maintained in or upon said Landscape Easements without the written consent of the Board and provided such are in accordance with all applicable zoning laws. Notwithstanding the reservation of this easement, the Owners of Lots subject to an LE which does not extend along adjoining streets or roads shall have the exclusive right to use such area, subject to any other easement affecting such Lot. Section 3.7 Lake Maintenance Access Easement and Emergency Access Easement. There may be strips of grounds as shown on the Plat marked Lake Maintenance Access Easement (L.M.A.E.) and Emergen.cy Access Easement (E.A.E.), which are created and reserved: (a) for the use of the Developer during the Development Period for access to the Common Area or the Lakes and (b) for the nonexclusive use of the Association or any applicable governmental authority for access to the Common Areas or the Lakes. The Owner of any Lot which is subject to an LMAE or EAE shall be required to keep the portion of his Lot which is subject to such easement free from obstructions so that access will be unimpeded. Section 3.8 Medians and Entry Features. There may be landscaped medians and/or islands located within the Real Estate and within the public right-of-way of the streets which are not otherwise labeled as, Common Areas or as LE. These areas are created and reserved for installation and maintenance of landscaping and entry features such as but not limited to permanent walls, signs, fences and landscaping material. These landscaped areas and features shall be maintained by the Association as if such were a Common Area. Section 3.9 Sales and Construction Offices. Notwithstanding any provisions or restrictions herein to the contrary, during the Development Period, and for a reasonable time thereafter, there is hereby reserved and created for the use of Developer, and its successors and assigns, and persons constructing improvements within the Real Estate, an easement for access to the Real Estate for the maintenance of signs, sales offices, construction offices, business offices, and model houses, together with such other facilities as in the sole opinion of Developer may be reasonably required, convenient, or incidental to the completion, improvement and or sale of Lots and the Common Areas. Section 3.10 Maintenance Easement. There is hereby reserved and created for the use of Developer, the Association and their respective agents, employees, successors and assigns, a maintenance easement to enter upon any Lot for the purpose of mowing, removing, clearing, cutting, or pruning underbrush, weeds, stumps, or other unsightly growth and removing trash, so as to maintain a community-wide standard of health, fire safety, and appearance for and within the Real Estate, provided that such easements shall not impose any duty or obligation upon Developer or the Association to perform any such actions. Section 3.11 Patio Homes. In the event that Developer permits a builder to construct within the Real Estate a Dwelling Unit that is to be substantially contiguous with a the side lot line of an adjacent Lot (such Dwelling Unit herein referred to as a "Patio Home"), then to the provisions of this Section 3.11 shall apply: (a) To the extent necessary, the owner of the Lot upon which a Patio Home is constructed is hereby granted a six (6) foot access easement upon the Lot, which is adjacent and substantially contiguous to the side wall of the Patio Home. The easement under this subsection is for the construction, maintenance and the encroachment by walls, eves, roof overhang, gutters and similar structures, and as necessary or appropriate, for underground utility lines and utility services, in favor of the Owners of each of the affected Lots and to all public, private and municipal utility companies. Notwithstanding the foregoing, there shall be maintained a minimum distance between the side walls of Dwelling Units often (10) feet, and between rear walls of Dwelling Units of twenty (20) feet. The surface of the easement area shall be restored by the person using the easement area to the condition as existed prior to any disturbance. (b) Each Patio Home, other than one specifically excepted by Developer, shall have one (1) sidewall constructed without windows (the "blank wall") below a point which is seven (7) feet above the finished floor elevation. The Owner of a Patio Home shall have an exclusive easement of use of the area extended from the exterior side wall of such Owner's Patio Home

12 to the blank wall of the adjacent Dwelling Unit which faces said area, and running the length of such blank wall side of such adjacent residence (the "patio area"); provided that such exclusive easement shall not apply in the case where there are two (2) adjacent lots where two (2) patio areas face each other, and it further shall not apply in the case when the adjacent Dwelling Unit is not constructed substantially contiguous to a side lot line. The Owner of the Patio Home benefited by the patio area shall maintain such patio area, excluding the blank wall of the adjacent residence. In the event such Owner fails to maintain said patio area, the Owner of the adjacent Dwelling Unit shall have the right and an easement to enter such area as necessary to maintain any portion of his Lot within such easement area. No fences, except fences installed by Developer, shall be erected in said patio area without the written consent of both Owners, and otherwise with the consent of the Committee. In the event two (2) Patio Homes are constructed side by side with blank walls facing a common property line, the Owners of each Patio Home shall be responsible for maintaining the area between the blank wall of their patio homes and the common property line. Section 3.12 Tree Preservation Areas ("TPA''). Tree Preservation Areas, also known as a TP A, are designated on the Plat of the Real Estate. Except as installed by Developer or the Association, no improvements or permanent structures, including without limitation, fences, patios, decks, driveways, and walkways, shall be erected or maintained in or upon any TP A without the written consent of the Board, provided such are otherwise in accordance with all applicable zoning laws. An Owner of any Lot affected by a TP A shall maintain such area in a natural condition, and shall not further landscape or improve such area except with the prior written approval of the Board. In addition, no Owner of any Lot upon which a TPA exists shall, except as otherwise permitted below, remove or excessively prune, or cause the removal or excessive pruning of, any tree within the TPA. For purposes of this Section, the following definitions shall apply: (a) "Excessive pruning" means removal of more than one-fourth of the functioning leaf and stem area of a tree in any twelve-month period, or removal of foliage so as to cause the unbalancing of a tree; (b) "Remove" means (i) Complete removal, such as cutting to the ground or extraction, of a tree; or (ii) Taking any action leading to the death of a tree or permanent damage to its health; including but not limited to excessive pruning, cutting, girdling, poisoning, over-watering, unauthorized relocation or transportation of a tree, or trenching, excavating, altering the grade, or paving within the dripline area of a tree; and (c) "Tree" means any woody plant which has a trunk three (3) inches or more in diameter at four and a half (4 1/2) feet above natural grade level. A tree located within a TP A may be removed by an Owner if: (d) such Owner reasonably determines that such tree is dead, dangerous or is a detriment to or crowding an adjacent protected tree; or (e) such Owner has obtained the prior written consent of the Developer, during the Development Period, or the Association thereafter. In the case of subsection (d), above, prior to the removal unless conditions exist which reasonably constitute an emergency, the Owner shall notify the Developer, during the Development Period, and the Association thereafter. If within ten (10) days from such notice the Developer or the Association notifies the Owner that either of them disagrees with the determination that removal is necessary, such removal shall not occur. Otherwise, after such ten (10) day period, the Owner may remove such tree in accordance with such Owner's prior determination. Section 3.13 Private Lane Easements 1 st Amendment. Private Lane Easements, as designated on a Plat of all or any part of the Real Estate, are hereby created and reserved for the use of the Developer, the Association and the Owners of Lots abutting such Private Lane Easements for ingress to and egress from such Lots, as well as for the installation, maintenance, repair, and replacement of signs, walls, earth mounds, trees, foliage, landscaping, and other improvements. Each Owner shall be responsible for the maintenance of any landscaping within the Private Lane Easement affecting Owner s Lot. In the event such Owner does not maintain such landscaping in a manner reasonably accepted to the Developer or the Association, then the Developer or the Association, as the case may be, shall have the right to perform such maintenance, and seek reimbursement for the costs thereof from such Owner in accordance with the procedures available to the Associating for the collection of Assessments. Except as installed by Developer or the Association, no improvements or permanent structures, including without limitation, fences, patios, decks, driveways, and walkways, shall be erected or maintained in or upon said Private Lane Easements without the written consent of the Board and provided such are in accordance with the terms of this Declaration and all applicable zoning laws. (First Amendment to Declaration of Covenants, Conditions and Restrictions; added December 18, 2003 by Developer) Section 3.14 Perpetual Non-Buildable Easement 1 st Amendment. There are strips of land measuring six (6) feet in width, as depicted on the plat, which are identified at Perpetual Non-Buildable Easements (P.N.E), which P.N.E may be located either separately or in combination with other easements. Each P.N.E. is reserved for maintained and fire protection. Except as provided below, no structures shall be erected or permitted to remain upon such strips of land, and the Owners of Lots subject to the following uses and improvements are strictly prohibited within a P.N.E.: fences (other than Permitted Fences), decks, window or wall mounted air condition units, bay windows, eaves and overhands, chimneys, balconies and storage sheds. The following uses and improvements are permitted within the P.N.E. (so long as such are approved by the Association or originally installed by Developer and otherwise

13 permitted by local ordinance, as applicable), and shall not constitute permanent structures for purposes of a P.N.E.: Permitted Fences (as defined below), grade level patio stoops, HVAC equipment (including compressor units, and related equipment), utility service meters and connections (including but not limited to gas, electric, telephone, cable, satellite and aerials.) Permitted Fences shall mean a fence which otherwise complies with the restrictions set forth in the Declaration and is approved by the Association, and which: (a) is perpendicular to the side wall of the subject residence, and (b) terminates at point such that there exists at least three feet (3 ) between such point and the property line of the subject Lot. (First Amendment to Declaration of Covenants, Conditions and Restrictions; amended December 18, 2003 by Developer) ARTICLE IV - ORGANIZATION AND DUTIES OF ASSOCIATION Section 4.1 Organization of Association. The Association shall be organized as a nonprofit corporation under the laws of the State of Indiana, to be operated in accordance with the Article of Incorporation which have been filed or will be filed by Developer, and the Code of By- Laws of the Association. Section 4.2 Voting Rights. The membership of the Association shall consist of two (2) classes of membership with the following rights: (a) Class A Membership. Class A Members shall be all Owners except Class B Members. Each Class A Member shall be entitled to one (1) vote for each Lot owned by such Member with respect to each matter submitted to a vote of Members upon which the Class A Members are entitled to vote. In the event that any Lot shall be owned by more than one person, partnership, trust, corporation, or other entity, each shall be a Member but they shall be treated collectively as one Member for voting purposes, so that as to any matter being considered by the Class A Members, only one (1) vote is cast for each Lot. (b) Class B Membership. Class B Members shall be the Developer and all successors and assigns of Developer specifically designated in writing by Developer as Class B Members. Each Class B Member shall be entitled to three (3) votes for each Lot of which it is the Owner with respect to each matter submitted to a vote of the Association. The Class B Membership shall cease and terminate upon the first to occur of (i) the date upon which the written resignation of the Class B Members as such is delivered to the Association; or (ii) at such time as the total votes outstanding in the Class A Membership equal the total votes outstanding in the Class B Membership. Notwithstanding anything herein to the contrary, during the Development Period all actions of the Association shall require the prior written approval of the Developer. Section 4.3 General Duties of the Association. The Association is hereby authorized to act and shall act on behalf of, and in the name, place, and stead of, the individual Owners in all matters pertaining to the maintenance, repair, and replacement, of the Common Areas, the determination of Common Expenses, and the collection of annual and special Assessments. The Association shall also have the right, but not the obligation to act on behalf of any Owner or Owners in seeking enforcement of the terms, covenants, conditions and restrictions contained in the Plats. Neither the Association nor its officers or authorized agents shall have any liability whatsoever to any Owner for any action taken under color of authority of this Declaration, or for any failure to take any action called for by this Declaration, unless such act or failure to act is in the nature of a willful or reckless disregard of the rights of the Owners or in the nature of willful, intentional, fraudulent, or reckless misconduct. (a) Maintenance by Association. The Association shall maintain and keep in good repair the Common Areas. The maintenance shall include, but need not be limited to, maintenance, repair and replacement of all landscaping and oth.er flora, structures, play equipment, and improvements, including all private streets situated upon the Common Areas, landscaping easements along the primary roads through the Real Estate, medians and rights of way of public streets within the Real Estate, entry features for the Real Estate, and such portions of any other real property included within the Common Areas as may be provided in this Declaration, or by a contract or agreement for maintenance with any other person or entity, by the Association. (b) Maintenance by Owners. Unless specifically identified herein, each Owner shall maintain and repair the interior and exterior of his or her Lot and Dwelling Unit, and all structures, parking areas, lawns, landscaping, grounds and other improvements comprising the Lot and Dwelling Unit in a manner consistent with all applicable covenants. (c) Association's Remedies & if Owner Fails to Maintain Lot. In the event that Developer or the Association determines that: (i) any Owner has failed or refused to discharge properly his obligations with regard to the maintenance, cleaning, repair, or replacement of items for which is his responsibility hereunder, or

14 (ii) that the need for maintenance, cleaning, repair, or replacement which is the responsibility of the Association hereunder is caused through the willful or negligent act of an Owner, his family, tenants, guests, or invitees, and is not covered or paid for by insurance in whole or in part, then in either event, Developer or the Association, except in the event of an emergency situation, may give such Owner written notice of Developer's or the Association's intent to provide such necessary maintenance, cleaning, repair, or replacement, at the sole cost and expense of such Owner as the case may be, shall have ten (10) days within which to complete such maintenance, cleaning; repair or replacement in a good and workmanlike manner, or in the event that such maintenance, cleaning, repair or replacement is not capable of completion within said ten (10) day period, to commence said maintenance, cleaning, repair or replacement and diligently proceed to complete the same in a good and workmanlike manner. In the event of emergency situations or the failure of any Owner to comply with the provision hereof after such notice, Developer or the Association may provide (but shall not have the obligation to so provide) any such maintenance, cleaning, repair or replacement at the sole cost and expense of such Owner and said cost (togeth.er with the cost of attorneys fees, if any, in the enforcement of the Owner's obligations and collection of the charge to the Owner) shall become a lien against the individual Owner's Lot (with respect to any matter relating to an individual Owner's responsibility) and such cost shall become a part of the costs of the Association (until such time as reimbursement is received from the individual Lot Owner). In the event that the Developer undertakes such maintenance, cleaning, repair or replacement, the Association shall promptly reimburse the Developer for the Developer's costs and expenses, including reasonable attorneys' fees and filing fees. Section 4.4 Insurance. The Association shall maintain in force adequate public liability insurance protecting the Association against liability for property damage and personal injury. The Association may, but need not, maintain in force adequate officers and directors insurance covering the officers and directors of the Association. If appropriate, the Association shall also maintain in force adequate fire and extended coverage insurance, insuring all Common Areas against fire, windstorm, vandalism, and such other hazards as may be insurable under standard "extended coverage" provisions, in an amount equal to the full insurable value of such improvements and property. The Association shall notify all mortgagees which have requested notice of any lapse, cancellation, or material modification of any insurance policy. All policies of insurance shall contain an endorsement or clause whereby the insurer waives any right to be subrogated, to any claim against the Association, its officers, Board members, the Developer, any property manager, their respective employees and agents, the Owners and occupants, and also waives any defenses based on co-insurance or on invalidity arising from acts of the insured, and shall cover claims of one or more parties against other insured parties. The Association may maintain a fidelity bond indemnifying the Association, the Board and the Owners for loss of funds resulting from fraudulent or dishonest acts of any director, officer, employee or anyone who either handles or is responsible for funds held or administered by the Association, whether or not they receive compensation for their services. The fidelity bond should cover the maximum amount offup.ds which will be in the custody of the Association or its management agent at any time, but in no event shall such fidelity bond coverage be less than the sum of one (1) years' assessment on all Lots in the Real Estate, plus the Association's reserve funds. The Association shall cause all insurance policies and fidelity bonds to provide at least ten (10) days written notice to the Association, and all mortgagees who have requested such notice, before the insurance policies or fidelity bonds can be canceled or substantially modified for any reason. Section 4.5 Owners' Insurance Requirements. By virtue of taking title to a Lot subject to the terms of this Declaration, each Owner covenants and agrees with all other Owners and with the Association that each Owner shall carry blanket all-risk casualty insurance on the Lot(s) and structures constructed thereon. The Board may require all Owners to furnish copies or certificates thereof to the Association, Each Owner further covenants and agrees that in the event of a partial loss or damage resulting in less than total destruction of structures comprising his Lot, the Owner shall proceed promptly to repair or to reconstruct the damaged structure in a manner consistent with the original construction or such other plans and specifications as are approved in accordance with Article IX of this Declaration and all applicable zoning, building and other governmental regulations. The Owner shall pay any costs of repair or reconstruction, which are not covered by insurance proceeds. In the event that the structure is totally destroyed, the Owner may decide not to rebuild or to reconstruct, in which case the Owner shall clear the Lot of all debris and return it to substantially the natural state in which it existed prior to the beginning of construction and thereafter the Owner shall continue to maintain the Lot in a neat, safe, and attractive condition. Section 4.6 Condemnation or Destruction. In the event that any of the Common Areas shall be condemned or taken by any competent public authority, or in the event the same shall be damaged or destroyed by any cause whatsoever, the Association shall represent the interests of the Owners in any proceedings, negotiations, insurance adjustments, settlements, or agreements in connection with such condemnation, damage, or destruction. Any sums recovered by the Association shall be applied, first, to the restoration and repair of any Common Areas condemned, damaged, or destroyed, to the extent such restoration or repair is practicable, and the balance of such sums shall either be held as a reserve for future maintenance of the Common Areas or turned over to the Owners in proportion to their Pro-rata Shares (as hereinafter defined), whichever may be determined by a majority vote of the members of the Association. Each Owner shall be responsible for pursuing his own action for damages to his Lot, either by reason of direct damage